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316 U.S.

62 S.Ct. 1159
86 L.Ed. 1559

No. 1119.
Argued and Submitted May 11, 1942.
Decided June 1, 1942.

Mr. J. F. McCutcheon, of Dallas, Tex., for petitioner.

Messrs. Pat Coon, Jr., and Spurgeon E. Bell, both of Austin, Tex., for
Mr. Chief Justice STONE delivered the opinion of the Court.

Petitioner, a negro, was indicted for the crime of rape by the grand jury for
Dallas County, Texas. When the case was called for trial he submitted to the
court his verified written motion to quash the indictment because he had been
denied the equal protection of the laws guaranteed by the Fourteenth
Amendment. The grounds of his motion were that negroes had been excluded
from the grand jury which returned the indictment, and that the jury
commissioners and other state officers charged with the duty of organizing and
impanelling grand juries in Dallas County have for many years systematically
excluded and in this case did exclude negroes from the grand jury because of
their race.

After hearing evidence the court denied the motion and proceeded with the
trial, which resulted in a verdict and judgment of conviction. The Texas Court
of Criminal Appeals upheld the trial court's ruling on the motion and affirmed
the judgment. 157 S.W.2d 369. It held that petitioner had not sustained the
burden of proof resting on him to show that the failure to select negroes for
service on the grand juries in Dallas County was because of their race rather
than their lack of statutory qualifications for grand jury service. We granted
certiorari, 316 U.S. 655, 62 S.Ct. 1048, 86 L.Ed. -, to inquire whether the

court's ruling is consonant with our decisions in Neal v. Delaware, 103 U.S.
370, 26 L.Ed. 567; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed.
757; and Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84.

Article 339 of the Texas Code of Criminal Procedure provides that a grand
juror must be a citizen of the state and county, qualified to vote there, a
freeholder within the state or a householder within the county, of sound mind
and good moral character, able to read and write. He must not have been
convicted of a felony or be under indictment or other legal accusation of any
felony. The section directs that 'whenever it shall be made to appear to the court
that the requisite number of jurors who have paid their poll taxes can not be
found within the county, the court shall not regard the payment of poll taxes as
a qualification for service as a joror'.

On rejecting the proof of discrimination on which petitioner relied, the Texas

Court of Criminal Appeals (157 S.W.2d 372) said 'appellant assumed the
burden of sustaining his allegations by proof. He attempted to do so by showing
certain facts from which, as he claims, such a conclusion could be reasonably
drawn. He showed that 58,000 white persons and 8,000 negroes paid poll taxes
in Dallas County, but the record is silent as to how many of them were male
and how many were female persons; nor is it shown how many of these male
persons could read and write; nor how many of them were freeholders in the
state or householders in the county'. And the State argues here that in these
circumstances there can be no inference that long-continued failure of the
county officials to select members of the colored race to serve on grand juries is
discriminatory, without proof that there are members of that race living in the
county who are qualified to serve as grand jurors.

The state filed a general denial of petitioner's motion, but submitted no

answering affidavits, and called no witnesses, and so the only question before
us is whether petitioner made out a prima facie case of the discriminatory
exclusion of negroes from the grand jury. Petitioner called as witnesses two of
the three grand jury commissioners, whose duty it is to summon sixteen men, of
whom twelve are selected for service on each grand jury in Dallas County
(articles 338, 357). They testified that the commission had summoned, for
service on the grand jury which returned the indictment, members of the white
race with whom they were acquainted and whom they knew to be qualified to
serve. They testified that members of the commission had no prejudice against
the colored race; that they discussed the possibility of selecting negroes to
serve, and that they knew negroes in the county. One testified: 'I personally did
not know of a qualified negro that I thought would make a good grand juror'.
The other testified he did not know which of the negroes of his acquaintance

could read and write. Both testified that they made no investigation or inquiry
to ascertain whether there were negroes in the county qualified for grand jury

An assistant district attorney for the county, who had lived in Dallas County for
twenty-seven or twenty-eight years and had served for sixteen years as a judge
of the criminal court in which petitioner was tried and convicted, testified that
he never knew of a negro being called to serve on a grand jury in the county.
The district clerk of the county, whose duty it is to certify the grand jury list to
the sheriff (article 344), knew of no citations issued for negroes to serve upon
the grand jury. A colored witness, a property owner and poll tax payer in Dallas
County, engaged in the insurance and bonding business, and resident in the
county for fiftyfour years, testified that he had often been called to serve as a
petit juror but had never known of any colored man to be called as a grand
juror. Two other colored witnesses, property owners and poll tax payers, who
had lived in the county for twenty-five years, had never known of a negro to be
called on a grand jury. There was also evidence already mentioned which the
Texas Court of Criminal Appeals found sufficient to show that of the 66,000
poll tax payers in the county 8,000 were negroes.

Another witness estimated the total negro population of the county as 55,000.
Actually this was an underestimate, for the 1940 census shows the total
population of the county to be 398,564 of whom 61,605 are negroes, and of
these 19,133 are males twenty-one years old or more. The census of 1930
showed only 7.5 per cent of the negro population of the county to be illiterate.
The census data of 1940 show that of the 17,263 male negroes in the county
who were twenty-five years of age or more, 16,107 had attended grade school
or higher institutions of learning. Of these 7,979 had attended grade school
from five to eight years; 1,970 had attended high school from one to three
years, and 1,124 for four years: 466 had attended college from one to three
years, and 284 for four years or more.

We think petitioner made out a prima facie case, which the state failed to meet,
or racial discrimination in the selection of grand jurors which the equal
protection clause forbids. As we pointed out in Smith v. Texas, supra, 311 U.S.
131, 61 S.Ct. 165, 85 L.Ed. 84, chance or accident could hardly have accounted
for the continuous omission of negroes from the grand jury lists for so long a
period as sixteen years or more. The jury commissioners, although the matter
was discussed by them, consciously omitted to place the name of any negro on
the jury list. They made no effort to ascertain whether there were within the
county members of the colored race qualified to serve as jurors, and if so who
they were. They thus failed to perform their constitutional duty recognized by

4 of the Civil Rights Act of March 1, 1875, 8 U.S.C. 44, 8 U.S.C.A. 44, and
fully established since the decision in 1881 of Neal v. Delaware, supranot to
pursue a course of conduct in the administration of their office which would
operate to discriminate in the selection of jurors on racial grounds.
Discrimination can arise from the action of commissioners who exclude all
negroes whom they do not know to be qualified and who neither know nor seek
to learn whether there are in fact any qualified to serve. In such a case
discrimination necessarily results where there are qualified negroes available
for jury service. With the large number of colored male residents of the county
who are literate, and in the absence of any countervailing testimony, there is no
room for inference that there are not among them householders of good moral
character, who can read and write, qualified and available for grand jury

More than sixty years ago, in Neal v. Delaware, supra, 103 U.S. 397, 26 L.Ed.
567, a case substantially like the present, this Court laid down the rule which
we think controlling here: 'The showing thus made, including, as it did, the fact
(so generally known that the court felt obliged to take judicial notice of it) that
no colored citizen had ever been summoned as a juror in the courts of the State,
although its colored population exceeded twenty thousand in 1870, and in
1880 exceeded twenty-six thousand, in a total population of less than one
hundred and fifty thousand,presented a prima facie case of denial, by the
officers charged with the selection of grand and petit jurors, of that equality of
protection which has been secured by the Constitution and laws of the United
States. It was, we think, under all the circumstances, a violent presumption
which the State court indulged that such uniform exclusion of that race from
juries, during a period of many years, was solely because, in the judgment of
those officers, fairly exercised, the black race in Delaware were utterly
disqualified, by want of intelligence, experience, or moral integrity, to sit on
juries.' And recently we held in Pierre v. Louisiana, supra, that a prima facie
case of race discrimination had been established where there had been a longcontinued failure to select colored citizens for service on grand juries in a
county, 50 per cent of whose population, or approximately 7,000, were colored,
of whom from 70 to 80 per cent were shown to be literate. We thought as we
think here that had there been evidence obtainable to contradict the inference to
be drawn from this testimony, the state would not have refrained from
introducing it, and that the evidence which was introduced sufficiently showed
that there were colored citizens of the county qualified and available for service
on the grand jury.


A prisoner whose conviction is reversed by this Court need not go free if he is

in fact guilty, for Texas may indict and try him again by the procedure which

conforms to constitutional requirements. But no state is at liberty to impose

upon one charged with crime a discrimination in its trial procedure which the
Constitution, and an Act of Congress passed pursuant to the Constitution, alike
forbid. Nor is this Court at liberty to grant or withhold the benefits of equal
protection, which the Constitution commands for all, merely as we may deem
the defendant innocent or guilty. Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct.
437, 445, 71 L.Ed. 749, 50 A.L.R. 1243. It is the state's function, not ours, to
assess the evidence against a defendant. But it is our duty as well as the state's
to see to it that throughout the procedure for bringing him to justice he shall
enjoy the protection which the Constitution guarantees. Where, as in this case,
timely objection has laid bare a discrimination in the selection of grand jurors,
the conviction cannot stand because the Constitution prohibits the procedure by
which it was obtained. Equal protection of the laws is something more than an
abstract right. It is a command which the state must respect, the benefits of
which every person may demand. Not the least merit of our constitutional
system is that its safeguards extend to allthe least deserving as well as the
most virtuous.